Posts tagged with "CT Divorce Attorney"

When Third Party Custody is Awarded in Connecticut

CT Third Party Custody 

Third party custody can be awarded in Connecticut under some very exceptional circumstances. Most third-party actions fail and custody is ultimately awarded to a parent because they have a fundamental right to raise their children. The Connecticut Judicial Branch put out a few publications that outline what it takes for a third party to win in a custody action and the standards that will be applied to such actions.

That publication included an analysis of a landmark case in Connecticut, Fish v. Fish, that helped shape the law on this issue in Connecticut. That case has since been cited as the proper way to interpret C.G.S.A. 46b-56 and 46b-57 which deal with custody and visitation. The CT publication and Fish v. Fish will be excerpted in the following to explain this tricky custody issue.

Basic CT Principals

To begin it is helpful to outline a few basic Connecticut principles. First, “third parties cannot initiate custody proceedings, unlike third parties who are permitted to initiate proceedings in visitation cases.” Fish v. Fish, 285 Conn. 24, 72 (2008). Therefore, in order for a third party to make a claim for custody, they would have to intervene in an already initiated custody proceeding.

Next, a third party attempting to intervene in a custody proceeding needs to have proper standing. Unlike a parent who clearly has standing in a custody proceeding, a third party needs to overcome this constitutional hurdle by properly alleging a parent-like relationship.

As stated in Fish, “. . . to avoid constitutional infirmity, the standing requirement that a third party allege a parent-like relationship with the child should be applied for all of the reasons described in Roth to third party custody awards and to third parties seeking intervention in existing custody proceedings.” Id. at 44.

Overcoming a Strong Parental Presumption

If a third party does intervene properly and has standing, then the third party needs to overcome a strong parental presumption. “The statutory presumption in favor of parental custody may be rebutted only in exceptional circumstances and only upon a showing that it would be clearly damaging, injurious or harmful for the child to remain in the parent’s custody.” Id.

“Where the dispute is between a fit parent and a private third party, both parties do not begin on equal footing in respect to rights to care, custody, and control of the children. The parent is asserting a fundamental constitutional right. The third party is not. A private third party has no fundamental constitutional right to raise the children of others.

Generally, absent a constitutional statute, the non-governmental third party has no rights, constitutional or otherwise, to raise someone else’s child.” Id. at 46. Most jurisdictions have observed that third-party custody awards should be exceptional in nature and that the concept of detriment involves a type of analysis qualitatively different from that involving the best interests of the child.

Fish Court Conclusion

The Fish court concluded, “that the statutory presumption in favor of parental custody may be rebutted only in exceptional circumstances and only upon a showing that it would be clearly damaging, injurious or harmful for the child to remain in the parent’s custody.”

See In re B.G., 11 Cal.3d at 698. “We add that this does not mean temporary harm of the kind resulting from the stress of the dissolution proceeding itself but significant harm arising from a pattern of dysfunctional behavior that has developed between the parent and the child over a period of time.” Id. at 57.

“Such a standard is not constitutionally infirm or susceptible to the criticism sometimes leveled against the “best interests of the child” test because it does not allow the court to apply its own “personal and essentially unreviewable lifestyle preferences.” Roth v. Weston, 259 Conn. at 223.

“At the same time, the standard we adopt is narrowly tailored to limit the scope of intervention to those exceptional cases in which parental custody would result in significant harm to the child, thus serving the compelling state interest of protecting the liberty interests of the parents while remaining sensitive to the child’s welfare.” Id.

To Summarise

As you can see there are significant hurdles for a third party to overcome if they have a legitimate reason for wanting custody of someone’s child. In summation, the party must prove by a fair preponderance of the evidence facts demonstrating that he or she has a relationship with the child akin to that of a parent, that parental custody clearly would be detrimental to the child and, upon a finding of detriment, that third party custody would be in the child’s best interest.

Third-party custody is an uphill fight and only a very experienced attorney can help a client navigate these rough waters. If you need a lawyer’s assistance in a custody matter, don’t hesitate to call one of Maya Murphy’s experienced family law attorneys for a free consultation at 203-221-3100.

Written by Kyle M. Buonocore, Excerpts from Fish v. Fish, 285 Conn. 24 (2008).

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If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

What Is a ‘Legal Separation’ in Connecticut?

A legal separation is a status that affects the legal rights and obligations spouses have toward each other without formally ending the marriage.  A court decree of legal separation has many of the same effects as a divorce; assets and liabilities will be divided and, if there are children involved, a parenting plan will be implemented as in a divorce proceeding.  Legally separated spouses are freed from most legal obligations, and give up most legal rights, to each other but remain legally married.  Accordingly, neither spouse can remarry without first having the separation decree converted into one for divorce.

If you have any questions related to divorce and legal separations in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

Adoptive Children and Communications with their Biological Parents

One of adoptive parents’ principal concerns is that of the role of the biological parents. Can a biological parent change their minds about the adoption? Can the biological parents communicate with the adopted child? Can the adopted child ever find out information about his/her biological parent(s)? All these questions can be nerve-racking for individuals who wish to adopt.

The reality is that in all states, the biological parents have a period of time in which they can revoke their consent to the adoption. In Connecticut, Conn. Gen. Stat. § 45a-719 allows for a birth parent to file a petition to set aside an order voluntarily terminating parental rights at any time before the entry of the final adoption decree. However, a biological parent’s ability to revoke may be terminated in cases of abandonment, failure to support the child, or abuse and neglect. Once the court issues a final decree of adoption, a birth parent’s consent becomes final and irrevocable.

After a final adoption decree, it is possible for the adoptive child and biological parents to communicate. The extent of that communication can be negotiated prior to the final adoption decree. In some cases, biological parents and intended adoptive parents enter into what is known as a Cooperative Postadoption Agreement.  This is a written agreement between either or both birth parents and an intended adoptive parent(s) regarding communication or contact contacteither or both birth parents and the adopted child. It is in the Cooperative Postadoption Agreement that the extent of involvement of the birth parents can be defined.

In the case of Cooperative Postadoption Agreements, the identity of the biological parents is known.  However, generally, adoption records are sealed and only non-identifying information is provided to the adoptive parents or adopted child (if he/she is an adult) upon request. This non-identifying information includes (1) age of biological parents in years at the birth; (2) heritage of the biological parent or parents; (3) education stated in the number of years of school completed; (4) general physical appearance of the biological parent(s); (5) talents, hobbies and special interests of the biological parent or parents; (6) existence of any other child or children born to either biological parent of the adopted or adoptable person; (7) reasons for placing the child for adoption or for biological parental rights being terminated; (8) religion of biological parent or parents; (9) field of occupation of biological parent or parents in general terms; (10) health history of biological parent or parents and blood relatives; (11) manner in which plans for the adopted or adoptable person’s future were made by biological parent or parents; (12) relationship between the biological parents; (13) any psychological, psychiatric or social evaluations; and (14) any other relevant non-identifying information.

In the event that the adoptive parents or adopted adult child wishes to learn the identity of the biological parents, written consent must first be obtained from the person whose identity is being request. Therefore, the identity of the birth parents (if not already known) will remain unknown unless the birth parent(s) consents.

Given the significant impact that contact with biological parents can have on the adopted child, it is important to have an attorney who is well versed in adoption law.

By: Leigh Ryan, Esq.

Connecticut telephone number: (203) 221-3100; New York telephone number: (212) 682-5700; Firm url: www. Mayalaw.com; E-mail: JMaya@Mayalaw.com
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

 

Connecticut Supreme Court Holds Support Awards Based on Earning Capacity Must Specify Its Dollar Amount

In a Connecticut Supreme Court decision, Tanzman v. Meurer, the Court held that when a trial court has based an alimony or child support award on a party’s earning capacity, the court must determine the specific dollar amount of the party’s earning capacity.[1] The Court overruled a previous Appellate Court decision, Chyung v. Chyung,[2] which held that a court issuing a lump-sum alimony award based on earning capacity was not required to specifically state the dollar amount.

The plaintiff, Jonathan M. Tanzman, appealed from the judgment of the Superior Court, Judicial District of Fairfield, denying his postjudgment motion to modify his unallocated alimony and child support obligations to the defendant, Margaret E. Meurer.[3] After the Appellate Court affirmed the trial court’s denial the plaintiff’s motion, the Supreme Court granted his appeal. The issue before the Supreme Court was whether a trial court that issuing a financial support order based on a party’s earning capacity must determine the specific dollar amount of the party’s earning capacity.

The relevant facts and procedural history as summarized by the Appellate Court show on October 6, 2006, in connection with its judgment of dissolution of the parties’ marriage, the trial court entered an order requiring the plaintiff to pay the defendant $16,000 per month in unallocated alimony and child support for a period of fourteen years. The court found that the plaintiff had an earning capacity far exceeding his then current income, but did not specify the amount of the earning capacity.  While the court determined that the plaintiff had earned a yearly average of $988,064.43 in his career as a day trader over the previous seven years, due to changes in the day trading industry he was unable to find another job in the same field and consequently was earning much less. Nevertheless, the trial court concluded that, “Although the changes in the market and the industry have proven a challenge to the plaintiff’s continued financial success, the court does not believe that he has made satisfactory efforts [toward] gaining new employment.”[4]

On January 9, 2008, the plaintiff filed a motion to modify the support order in which he represented that he had obtained employment at an annual salary of $100,000.  He contended that, because his current income was “a fraction of the earning capacity previously attributed to him by the trial court,” there had been a substantial change in circumstances justifying a modification of the award.[5] The plaintiff filed a motion for articulation of the original support order, asking the trial court to articulate the specific earning capacity that it had attributed to him at that time. The trial court denied the motion for articulation.

After a hearing, the trial court denied the plaintiff’s motion for modification of the support order.  The court stated that, at the time of the original support order, it “was not persuaded that there was a serious commitment and effort to maximize [the plaintiff’s] earning capability and the court’s position has not changed.” Again, while the court did not specify the amount of the plaintiff’s estimated earning capacity, it found that the plaintiff’s income had not been reduced significantly since the date of the original support order, and accordingly, concluded that the plaintiff had not clearly shown a substantial change in circumstances justifying a modification of the award.

The plaintiff then filed a motion for clarification of the court’s decision in which he requested the court to clarify whether it had considered “any amount of ‘earning capacity’” in connection with the motion for modification and, if so, “what amount did it consider?” The trial court denied the motion for clarification.

The plaintiff appealed the trial court’s denial of the motion for modification to the Appellate Court and filed a motion to review.  The Appellate Court ordered the trial court, regarding the October, 6 2008 support decision, “to state whether the court made a finding of the plaintiff’s current earning capacity and, if so, the specific dollar amount and the factual basis for that finding.”[6]  In response, the trial court issued an articulation in which it stated that had not made a specific finding of the plaintiff’s earning capacity in connection with its October 6, 2008 decision denying the motion for modification. Instead, it stated that “at the time of trial the plaintiff had not made efforts to maximize his earning capability and based on the evidence presented at the modification hearing including his financial affidavits the court’s position was essentially the same.”[7]

The Appellate Court affirmed the judgment of the trial court, denying the motion for modification.  The Appellate Court reasoned that, because the trial court’s “evaluation of the plaintiff’s earning capacity, as a foundation for its award and denial of the plaintiff’s motion for modification, remained unchanged throughout the underlying proceedings,” and because “the plaintiff has failed to provide us with any statute, case law or rule of practice that require[d] the trial court to specify an exact earning capacity when calculating an alimony and child support award”; “the trial court’s failure to specify an amount did not require reversal.”[8]

On appeal, the Supreme Court agreed with the plaintiff who argued that the Appellate Court improperly determined that the trial court is not required to determine the specific amount of a party’s earning capacity when that factor provides the basis for a support award.  The Supreme Court reversed the judgment of the Appellate Court affirming the trial court’s denial of his motion for modification and remanded to the trial court for a new hearing at which the court must determine the plaintiff’s earning capacity.[9]

In its opinion the Supreme Court articulated the law relevant to its decision. § 46b–86(a) provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change in the circumstances of either party.  Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred.”[10]

The trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards, pursuant to General Statutes §§ 46b–82 (a) and 46b–86, on the earning capacity of the parties rather than on actual earned income.[11] Earning capacity is not an amount which a person can theoretically earn, confined to actual income, but rather “it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.”[12]  “When determining earning capacity, it … is especially appropriate for the court to consider whether [a person] has willfully restricted his [or her] earning capacity to avoid support obligations.”[13]

The Supreme Court recognized that the Appellate Court relied on its previous decision in Chyung v. Chyung, to support its conclusion that, when a trial court relies on a party’s earning capacity to determine the amount of a financial award, the court is not required to specify the particular dollar amount of the party’s earning capacity. In Chyung, the trial court awarded the plaintiff a lump sum alimony payment of $350,000 based in part on the parties’ earning capacities.[14] The plaintiff appealed from the judgment, claiming that “the court’s failure to identify the defendant’s precise earning capacity resulted in an award that was based on speculation and conjecture.” The Appellate Court rejected the plaintiff’s claim, stating that she had “failed to provide us with any statute, case law or rule of practice that requires the trial court to specify an exact earning capacity.”[15] Unlike the present case, the plaintiff in Chyung had failed to file a motion for articulation of the court’s decision, rendering her claim unreviewable.

The Supreme Court overruled the holding of Chyung, except to the extent that the trial court had determined the specific amount of the defendant’s earning capacity in the support award but it has merely failed to articulate that amount in its support order, that failure does not automatically require reversal. Also, to the extent that it held that, when a party has failed to seek clarification as to whether the trial court failed to determine the specific amount of earning capacity or whether it merely failed to articulate the specific amount in its support order, a claim that the trial court improperly failed to determine a specific amount of earning capacity is unreviewable for lack of an adequate record.[16]

In the case at bar, the plaintiff did seek an articulation of the trial court’s determination of his earning capacity in its determination of the original support order and its decision to deny his motion to modify.  In reversing the Appellate Court the Court stated, “As the present case shows, the failure to specify the dollar amount of the earning capacity leaves the relevant party in doubt as to what is expected from him or her, and makes it extremely difficult, if not impossible, both for a reviewing court to determine the reasonableness of the financial award and for the trial court in a subsequent proceeding on a motion for modification to determine whether there has been a substantial change in circumstances.”[17]

Therefore, the Supreme Court concluded, “when a trial court has based a financial award pursuant to § 46b–82 or § 46b-86 on a party’s earning capacity, the court must determine the specific dollar amount of the party’s earning capacity.” Because the trial court could not reasonably have concluded that there had been no substantial change in the plaintiff’s earning capacity between the time of the original financial award and the motion for modification without ever having determined the plaintiff’s specific earning capacity, the trial court abused its discretion when it denied the motion for modification.  The Supreme Court determined the appropriate remedy was to reverse the judgment of the trial court denying the plaintiff’s motion for modification and order a new hearing on the issue of his earning capacity.[18]

Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100 or email Attorney Joseph C. Maya at JMaya@mayalaw.com. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.


[1] Tanzman v. Meurer, 18812, 2013 WL 3288091 (Conn. July 9, 2013)

[2] Chyung v. Chyung, 86 Conn.App. 665, 862 A.2d 374 (2004)

[3] Tanzman v. Meurer, 128 Conn.App. 405, 406, 16 A.3d 1265 (2011).

[4] Id.

[5] Id at 408.

[6] Id. at 410.

[7] Id.

[8] Tanzman v. Meurer, 128 Conn.App.405, 412, 413 (2011).

[9] Tanzman v. Meurer, 18812, 2013 WL 3288091 (Conn. July 9, 2013)

[10] Simms v. Simms, 283 Conn. 494, 502, 927 A.2d 894 (2007).

[11] Lucy v. Lucy, 183 Conn. 230, 234, 439 A.2d 302 (1981).

[12] Weinstein v. Weinstein, 280 Conn. 764, 772, 911 A.2d 1077 (2007).

[13] Bleuer v. Bleuer, 59 Conn.App. 167, 170, 755 A.2d 946 (2000).

[14] Chyung v. Chyung, 86 Conn.App. 665, 675 (2004).

[15] Id. at 676.

[16] Tanzman v. Meurer, 18812, 2013 WL 3288091 (Conn. July 9, 2013)

[17] Id.

[18] Id.

Adoption: The Gift of a Nurturing Home

As children, many of us dreamt about having a family of our own, about our significant other, marriage, a house and children. But as we grow older, we realize that dreams do not always materialize in the way we thought they would. Families are no longer expected to be comprised of a mother, a father and 2.3 children. Just as the definition of family has changed, so have the requirements for adoption. Many adoption agencies and courts no longer discriminate based upon marital status, age, religion or race.  They have recognized that these differences do not affect a potential parent’s ability to be a good parent.

Along with the recognition that each potential parent is different, comes the fact that each child in search of a home is different. Many of the children available for adoption are in foster care and are there because their biological parents could not care for them. As a result, many suffer from physical, emotional and mental challenges.  Currently, there are 129,000 children in foster care waiting to be adopted. More than two-thirds of children in foster care are aged 6 or older, and more than half are minorities. In Connecticut, over 4,000 children are in the care of the State Department of Children and Families due to abuse, neglect or abandonment.  And, they are all searching for one thing: A loving and supportive home environment.

Adopting a child can have significantly positive effects on that child’s life.  Studies have shown that adopted children score higher than their middle-class counterparts on indicators of school performance, social competency, optimism and volunteerism. The 2007 National Survey of Adoptive Parents indicated that adopted children were more likely to read every day as a young child, more likely to be sung to or told stories, more likely to participate in extracurricular activities and have above-average performances in reading, language arts, and math, than that of the children of the general population.

Adopting a baby or child can be one of the most rewarding experiences of your life and one of the most amazing gifts to a child. However, the process can be complicated and involve various federal and state laws. It is important to have a Connecticut adoption lawyer to represent you in the adoption process.

By: Leigh Ryan, Esq.

Connecticut telephone number: (203) 221-3100; New York telephone number: (212) 682-5700; Firm url: www. Mayalaw.com; E-mail: JMaya@Mayalaw.com

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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

Trending Now: Husbands Receiving Alimony

There is a new trend in divorce, men receiving alimony. Although it may come as a shock to some, times are changing and more men are receiving alimony then ever. Why? Well, the gender wage gap is declining more than ever, and many women are now earning higher wages than their male spouses. A recent article by TIME shed some light on this truly interesting new approach to alimony, the article is quoted in it’s entirety in the following:

It’s said that justice is blind, and that is becoming more apparent in the area of divorces and alimony. In the past, most husbands earned more than their wives. However, there are a growing number of marriages in which the wife is the breadwinner. As this trend changes, the face of spousal support is also changing. Now, it is not uncommon for a woman to wind up paying support to her ex-husband.

This change comes as a surprise to many women who are not accustomed to men receiving alimony payments. The thought of paying alimony to their ex-spouses angers them, but it serves as a reminder of what alimony was made for. Alimony recognizes the fact that one spouse sometimes makes sacrifices so that their partner can focus more on their career. Staying home with the children or limiting work hours can drastically lower that partner’s income potential, and alimony payments are intended to recognize that fact and ensure that both partners are protected financially.

When you are going through a divorce, you cannot count on traditional gender roles. Women do not automatically receive spousal support because it is based on several other factors. The courts will review the income difference, health of both parties, whether one spouse is caring for the children and if either party is at fault in the divorce. They will also look at the length of the marriage, and those partnerships lasting more than 25 years may be awarded permanent alimony.

Whether you are trying to protect your income levels or you are going to need spousal support to help make ends meet after a divorce, it is important to understand the laws and how they affect you. A divorce attorney specializing in property distribution and family law may be able to inform you of your rights and offer you valuable legal advice to help you protect your best interests during this time.

From: TIME.com, “The De-Gendering of Divorce: Wives Pay Ex-Husbands Alimony Too”, Liza Mundy, May 16, 2013.

Are you on the road to divorce? Looking to receive alimony? Whatever your family law issue, the experienced family law attorneys at the law offices of Maya Murphy P.C. in Westport, CT can help. Call today for a free consultation at 203-221-3100.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

When Tug-of-War is Not a Game: Relocation After Divorce

Lawyers often find ourselves telling clients that their divorce is never truly “final” when there are children involved.  Regrettably, many of the symptoms that bring spouses to our offices in the first place –the arguing, the conflict, certain confines and restrictions – may continue to exist on some level even after the lawyers have done their jobs and a judge signs a final judgment, especially when the divorcing parents are now entrusted with the responsibility to co-parent young children, from different homes, and from new perspectives.

Nowhere is that more evident than in cases where one spouse seeks to relocate with the minor children to a new state – perhaps hundreds of miles away from his or her former spouse, and his or her former life.

Developments in the law even in the past few years have refined the processes and legal burdens for spouses seeking to take their children to another location, perhaps to be closer to extended family or a support network, nearer to a new job or opportunity, or for other economic reasons.

The legal burden in Connecticut now rests squarely upon the parent seeking a relocation to prove to a court (assuming the other parent objects to the move) that the relocation of the children is for a legitimate purpose, that the relocation is reasonably related to achieving that purpose, and that the move and resulting transplantation is truly in the best interests of the minor child or children of the marriage.

In reaching its determination, a court will likely hear evidence from each parent, relevant witnesses and/or healthcare professionals or experts, and likely a court-appointed guardian to represent the child’s interests in such a proceeding.  Among other things, a court shall consider each parent’s reasons for seeking or opposing the relocation, the relationship each parent has with the subject child or children, any potential enhancement that the relocation might have on the child’s life or development, the feasibility of visitation or maintained contact between the non-relocating parent and the child notwithstanding the geographic shift, and the impact the relocation would have on the relationship between the child and the parent who might be left behind.

These types of post-judgment proceedings are often painful for both litigants and are driven by facts as much as the law – facts which could and often do have nothing whatever to do with the underlying reasons for the divorce itself.  A parent involved in a post-judgment relocation dispute in Connecticut must prepare for a contentious legal battle where personal convictions, risk tolerance, and emotions can and will be tested.

We advise clients in these cases not merely to weigh their legal options, but to evaluate and assess the best interests of their children who are innocently caught in perhaps the cruelest game of tug-of-war imaginable.  We prepare our clients and assist them in structuring their case for the most favorable presentation of facts and evidence to support their legal position.  Those considering or faced with the specter of a relocation petition should retain counsel who are both well-versed in the law and attuned to the reality and repercussions that litigation brings to children’s lives – sometimes years after the ink has dried on a divorce decree.

By: Attorney H. Daniel Murphy

Any questions about this posting or confidential inquiries concerning the subject matter, may be directed to Attorney Joseph C. Maya at JMaya@mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

What Has The Guardian Been Doing? GAL Disclosure in Divorce Proceedings

In contested child custody matters, it is common for a court to appoint a Guardian ad litem to represent the interests of minor children for that particular lawsuit or proceeding.  While Guardians ad litem (or “GAL’s”) are often attorneys, they are less frequently psychologists, social workers, or other individuals with experience representing children’s interests. The GAL’s duty is to speak on behalf of the “best interests” of the child, without necessarily being bound by a child’s expressed preferences, even when those preferences conflict with the perceived “best interests” of the child.

By contrast, a lawyer advocate for a minor child in a custody proceeding, referred to in many jurisdictions as an Attorney for the Minor Child(ren) (or AMC), is just that: a lawyer who is appointed and charged with vigilantly representing and advocating for his or her clients’ interests, including those positions which are expressed to the lawyer in the context of privileged attorney-client communications.

The fact that a GAL – who may, in fact, be a lawyer – does not enjoy the same attorney-client privilege with the minor children he or she represents creates certain significant issues with respect to discovery and document disclosure in the context of custody litigation.

In a recent decision on an issue of first impression, a Connecticut Superior Court determined that an attorney GAL’s entire file (including correspondence, emails, and handwritten notes) be disclosed to the parties over the objection of that GAL, who asserted the protections of the attorney-client privilege and work product doctrine.

The net effect of that Court’s determination is essentially to permit parents (litigants) who are understandably concerned about the position, progress, and considerable impact of a GAL’s opinion on his or her custody claim, to gain unfettered access to a GAL’s file regardless of that person’s status as an attorney.  In custody cases where a GAL may ultimately testify as a witness and opine to a court regarding a minor child’s “best interests,” a preview of that GAL’s work product and interview notes may prove invaluable.

Attorneys armed with both experience and an understanding of applicable case law can best advise our divorce clients regarding custody evaluations, GAL involvement, and overall trial strategy.

By: Attorney H. Daniel Murphy

Any questions about this posting or confidential inquiries concerning the subject matter may be directed to Attorney Joseph C. Maya at JMaya@mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

Domestic Violence and Divorce Litigation

By virtue of executive proclamation, the month of October is Domestic Violence Awareness Month in Westport, Connecticut.

As noted by Westport’s First Selectman Gordon F. Joseloff, “Domestic violence should not happen to anyone.  There is no excuse for abuse.  It is not a family business, and should never be considered nor treated as a socially-acceptable behavior.”

Indeed, domestic violence is a crime, and is frequently the basis for (or perhaps a symptom of) divorce proceedings.  More and more, in the field of divorce litigation, our lawyers handle the complex matters which relate to incidents of abuse within the home – including those issues relating to the criminal prosecution itself as well as the ongoing security of the victim.

At our firm, we have decades of experience dealing with divorces, restraining order petitions, and criminal litigation – often in situations where the three matters run concurrently.  We are similarly experienced with those unfortunate circumstances in which false allegations of criminal abuse have been improperly levied to gain advantage in divorce proceedings.  We handle all types of divorce and child-custody matters, including post-judgment matters, in Westport, Fairfield, Greenwich, and the entire Fairfield County area.

At every turn, our lawyers aggressively seek to advance the rights of the innocent, to protect the victimized, and to correct injustice.

By: H. Daniel Murphy, Esq.

For more information and a confidential consultation on your family law matter, please call our firm or email: JMaya@mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

A Case For a Child’s Wishes Over Court Determined Best Interests

In Connecticut, like many jurisdictions, the prevailing view on awarding custody is what is in the child’s best interests. But what about that child’s wishes? With minor children this may be difficult, but what about when children are of age? Should the best interest standard work alongside a child’s wishes, or completely dominate them like court decisions of years past? A recent article by Ruth Bettelheim from the New York Times has shed some interesting light on the subject, and suggested a new view on the best interests standard. The article “In whose best interests?” is quoted in the following:

Today, most divorces involving children include a parenting plan that dictates where children will live and which days they will spend with each parent. The process of agreeing on a custody arrangement is often very difficult for parents, who naturally have little desire to revisit the divorce experience. As a result, the legal agreement they reach typically will govern the daily rhythm and schedule of children without change until they turn 18.

In reality, a custody agreement that meets the needs of a toddler is unlikely to be right for a teenager. Imagine yourself as a 13-year-old who wants to spend more time with your friends over the weekends. Unfortunately, your parents are divorced, and you spend weekends with a parent who lives two hours away. You would be unlikely to request a change in custody because it would mean altering a longstanding agreement and plunging into a morass of conflicting loyalties and guilt over betraying whichever parent would lose out. Faced with such dilemmas, children in divorced families frequently end up suppressing their own needs to reduce conflict with, or between, their parents. Even when children are driven to speak up and request custody modifications, their voices carry little, if any, legal weight.

Rendering children voiceless and powerless to meet their own changing needs, or burdening them with guilt if they try to do so, is in no one’s best interest. It either creates hardship for children who grin and bear it or instigates a string of provocative and damaging behaviors in those who embark on increasingly desperate attempts to make someone notice that something is wrong.

Although the United Nations Convention on the Rights of the Child states that children have a right to meaningful participation in decisions affecting them, adults, from some misguided notion of protection, often seek to keep children from making choices in custody matters. But accepting certain kinds of responsibility for their own lives and learning from the consequences of their decisions, even poor ones, is vital for the growth and well-being of all children.

Once children have reached the age of reason — generally agreed to be about 7 — they should be recognized as the ultimate experts on their own lives. We all resent it when others say that they know better than we do how we feel and what is good for us. Nevertheless, we subject children to this when we call in experts to evaluate their lives over a period of days or weeks, as part of the custody process, instead of just listening to them.

To remedy this, all parenting plans should be subjected to mandatory binding review every two years. The review should include a forum for children to speak privately with a mediation-trained lawyer. The conversation should be recorded to ensure that the child was not pressured or asked leading questions. Children should not be forced to state preferences but invited to speak if they choose. Many children will decline, as they are deeply reluctant to hurt a parent. But occasionally, the need to advocate for themselves outweighs these fears. When they do speak up, their wishes should be honored as stated, not as interpreted by an expert or lawyer.

The lawyer should meet with all family members, individually and as a group, to ensure that the child’s wishes are respected in the next two-year parenting plan. Children’s wishes should be decisive, in place of those of experts and judges, as long as at least one parent agrees with them.

Some may fear this system would result in young children being manipulated by their parents. But my almost 40 years of practice as a family and child therapist have taught me several things that suggest otherwise. First, that children can tell the difference between being bribed and manipulated, and being respected, understood and having their needs (including those for discipline) met. Second, that children consistently choose the latter over the former, if given the chance. And finally, that children have a clear understanding of their own needs — even if they are unable to articulate justifications or reasons for their wishes.

Of course, even after listening to children, the success of custody plans must still be evaluated. A proper assessment of children includes their functioning at home, at school and in having age-appropriate peer relationships. If, after following a modified custody plan for two years, a child is failing in two of the three areas, then it is time to consider whether a different plan is needed.

In 1970, no-fault divorce made its first appearance in the United States, in California, bringing recognition that both parents have an equal right to have access to their children. Forty years later, in 2010, New York became the last state to adopt no-fault divorce. But children’s rights are still routinely ignored. Will it take another 40 years for children to be heard?
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100 or email JMaya@mayalaw.com. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.